Review of the Law of Manslaughter

91

REVIEW OF THE LAW OF MANSLAUGHTER

IN NEW SOUTH WALES

REPORT

BY

THE HONOURABLE MERVYN D FINLAY QC

APRIL 2003

Index

1. Summary of Conclusions and Recommendations 5

2. Appointment and Terms of Reference 7

3. Methodology 9

4. The Scope of the Terms of Reference 10

5. Background to the Review 15

6. Manslaughter 24

7. Homicide 27

8. Manslaughter – Present Position 36

9. Summary of Legal Routes to a Verdict of Manslaughter 38

10. The Partial Defences Reducing Murder to

Manslaughter 39

11. Is it Feasible to Create Statutory Definition(s) of

Categories of Manslaughter 57

12. Unlawful Homicide Statistics

A. Killing an Unborn Child 75

B. Manslaughter Generally (In NSW) 81

13. Manslaughter and Unborn Children 87

14. A. Whether NSW should legislate to introduce the

offence of “child destruction” 109

B. Whether it Would be Necessary to Establish

that the Offender Knew that the Mother was

Bearing a Child 140

15. Summary of the Review’s Responses to the

Terms of Reference 149

Index to Schedules

Schedule 1.1 Text of Advertisement Inviting Submissions to the Review.

Schedule 1.2 Organisations to Which Letters Inviting Submissions Were Sent.

Schedule 1.3 Submissions Received From Those Organisations Listed in Schedule 1.2.

Schedule 1.4 List of Other Submissions/Comments Received in Response to the Advertisment.

Schedule 2 Interviews.

Schedule 3 Arguments For and Against the Abolition of the Offence/Defence of Infanticide.

Schedule 4 Table of the Availability of Partial Defences to Murder in the Australian States and Territories.

Schedule 5 Extract of the Report of the “House of Lords Select Committee on Murder and Life Imprisonment” (1989).

Schedule 6 Report No 40 “Homicide” of the Law Reform Commission of Victoria, pp 62-73.

Schedule 7 Research Papers: Arguments For and Against the Partial Defences of Provocation and Diminished Responsibility.

Schedule 8 Extract of the “Draft Criminal Code for England and Wales” The Law Commission: 1989.

Schedule 9 Summary of Child Destruction/Kill Unborn Child Legislation in Other Australian Jurisdictions.

Schedule 10 Government Agencies Contacted for Child Destruction/Kill Unborn Child Statistics.

Schedule 11 Summary Tables of Data Provided by NSW Supreme Court Criminal Registry.

Schedule 12 NSW Bureau Of Crime Statistics And Research Table of Manslaughter Charges.

Schedule 13 Graphical Representation of Sentences for Manslaughter.

Schedule 14 Table of Maximum and Minimum Sentences for Individual Categories of Manslaughter.

Schedule 15 Summary Sample of USA case law.

Schedule 16 NSW Health Department Circular 2000/64.

1. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

A fuller summary of the Review’s responses to the Terms of Reference and summary of the Review’s reasons for recommendations can be found at Part 15 of the Report.

1.1 Manslaughter Generally

· I recommend that the Crimes Act 1900 (NSW) should not be amended to include a structured scheme of manslaughter offences and penalties.

· Accordingly, I recommend that there should not be different grades of manslaughter offences with standard non-parole periods to reflect the different circumstances and culpability involved.

· I recommend that any further consideration of the retention or abolition of the partial defences to murder be deferred until the report of the Victorian Law Reform Commission is published later in the year.

1.2 Manslaughter and the Unborn Child

· I recommend that the Crimes Act 1900 (NSW) provisions concerning manslaughter should not be amended in such a way as to allow a charge of manslaughter to be brought in circumstances where an unborn child dies.

· I recommend (in lieu of section 20 of the Crimes Act 1900 (NSW)) the adoption of the definition of “birth” contained in Chapter 5 of the 1998 Discussion Paper of the Model Criminal Code, for the purposes of the present “Homicide” offences.

· I further recommend the adoption of the definition of “death” contained in Chapter 5 of the 1998 Discussion Paper of the Model Criminal Code, for the purposes of the present “Homicide” offences.

· I recommend that New South Wales legislate to introduce the offence of “child destruction” relating to a criminal act causing a child, capable of being born alive to die before it has an existence independent of its mother. I have preferred the description of the offence “Killing an Unborn Child” to “Child Destruction”.

· My policy recommendation is that the fault element should be similar to that required to sustain a charge of murder or manslaughter if the child had survived to be born but had then died from the injuries received by the offender’s act or omission.

· I further recommend that the pregnant woman be excluded as a possible offender.

· I recommend that the general offence of “Killing an Unborn Child” should be supplemented to provide for an offence of dangerous driving of a vehicle or navigation of a vessel occasioning the death of a child capable of being born alive before it has an existence independent of its mother.

· I recommend that New South Wales legislate to provide for this offence of dangerous driving or navigation occasioning the death of a child capable of being born alive before it has an existence independent of its mother by appropriate amendment to sections 52A and 52B.

· I recommend that New South Wales legislate to provide for an offence of dangerous driving or navigation occasioning non-fatal injuries to the foetus by appropriate amendment to section 52A and s 52B.

2. APPOINTMENT AND TERMS OF REFERENCE

2.1 On 29 October 2002 I was appointed to conduct a review of the law of manslaughter in New South Wales.

2.2 The Terms of Reference for the review are:-

“Manslaughter Generally

The principal question to be considered in the review is whether the Crimes Act 1900 should be amended to include a structured scheme of manslaughter offences and penalties.

Specifically, the Government seeks advice as to whether there should be different grades of manslaughter offences with standard sentences to reflect the different circumstances and culpability involved.

This will involve consideration of the feasibility of creating statutory definition(s) of categories of manslaughter.

The review will examine the relevant provisions of the Crimes Act 1900 and the common law concerning manslaughter. The review will have regard to any recent domestic and/or international developments in the law of manslaughter that may inform its deliberations.

Manslaughter and Unborn Children

The review is to include an examination of whether the Crimes Act provisions concerning manslaughter should be amended in such a way as to allow a charge of manslaughter to be brought in circumstances where an unborn child dies.

The examination of this question will involve an assessment of the operation and effect of section 20 of the Crimes Act, concerning child murder, and the adequacy of that provision.

Such review is to include, but not be restricted to, consideration of the following questions:

(i) whether it would be necessary to establish that an offender knew that the mother was bearing a child; and,

(ii) whether NSW should legislate to introduce the offence of “child destruction”.

2.3 The terms provided for the review to seek submissions from interested parties by Friday, 31 January 2003.

2.4 They further noted that in conducting the review I may wish to have regard to comparable legislation in other Australian jurisdictions and overseas. Further that I would call for submissions from the public generally and from relevant individuals and organizations.

3. METHODOLOGY

3.1 An advertisement inviting submissions to the inquiry was placed in the following daily newspapers:- The Sydney Morning Herald, The Daily Telegraph and The Australian; and also placed on the www.lawlink.nsw.gov.au website. The text of the advertisement is set out in Schedule 1.1 to this Report. It attracted submissions or comments from those listed in Schedule 1.4.

3.2 In addition, letters inviting submissions were sent specifically to the individuals and organizations listed in Schedule 1.2, and submissions (or responses) were received from those (or their nominees) listed in Schedule 1.3. Other submissions were received after the closing date in Schedule 1.1. On the application of some parties the time for submissions was extended where sought.

3.3 A number of those who made submissions, and some who did not, were interviewed.

3.4 Those interviewed are identified in Schedule 2; most of such interviews were recorded.

3.5 In total 64 written submissions were received. 12 persons were interviewed.

4. THE SCOPE OF THE TERMS OF REFERENCE

4.1 The Terms of Reference consist of two sections namely:

A. Manslaughter Generally

B. Manslaughter and the Unborn Child.

4.2 As to A. “Manslaughter Generally”.

4.3 Whilst the heading is “Manslaughter Generally”, the first two paragraphs which follow, clearly confine the review to a consideration of the law of manslaughter in the light of the introduction of a new scheme of sentencing, “benchmark sentencing” or “standard sentencing” in relation to specified indictable offences. Those first two paragraphs are:

Firstly, the consideration whether the Crimes Act 1900 (NSW) “should be amended to include a standard scheme of manslaughter offences and penalties” as the principal question.

Secondly, specific advice as to whether there “should be different grades of manslaughter offences with standard non-parole periods to reflect the different circumstances and culpability involved”

4.4 A review of the whole law of manslaughter would require a review of unlawful homicide including murder. This would be a huge task involving possible reformulation of Section 18 of the Crimes Act 1900 (NSW) which is the section headed “Murder and Manslaughter Defined”.

4.5 Voluntary manslaughter.

Three of the ways in which a verdict of voluntary manslaughter may be returned in a trial of a murder charge (not including intoxication[1]) are:

i. Where the Crown establishes all the elements of murder but fails to prove that the accused was not acting under provocation when he/she killed the deceased;[2]

ii. Where all other issues including self-defence and that the accused was not acting under provocation, on a charge of murder have been resolved in favour of the Crown, and the accused satisfies the tribunal on the balance of probabilities that he/she was suffering from a “substantial impairment by abnormality of mind” as provided for by section 23A of the Crimes Act 1900 (NSW);

iii. Where the Crown establishes all the elements for murder but death is inflicted by “excessive force” in self-defence as provided for in section 421 of the Crimes Act 1900 (NSW).

4.6 The last of the above three, by “excessive force” in self-defence was recently considered by Parliament in the legislation which enacted section 421 of the Crimes Act 1900 (NSW). This amendment was assented to on 18 December 2001 and commenced operation on 22 February 2002[3]. Obviously, a reconsideration of such recent legislation is not called for in the present review.

4.7 Does the review call for a consideration of whether abolition or retention of the partial defences of “provocation” and/or “substantial impairment by abnormality of mind” should be reconsidered? Such consideration would, I believe, be more appropriately done as part of a much larger review of the whole area of unlawful homicide where clear notice is given that the width of the review may lead to recommendations about the abolition or retention of such partial defences.

4.8 However some of the many submissions received have touched upon the problems which the partial defences of provocation and substantial impairment can cause in jury trials and whether the abolition of such partial defences should be considered. I have brought together a deal of research in this area under the heading “The Partial Defences of ‘Provocation’ (section 23) and ‘Substantial Impairment by Abnormality of Mind’ (section 23A).” In Part 10 of this report I make some observations based on such research and such submissions which, I hope, will be of assistance to any later and wider review. However I consider that specific recommendations for such abolition/retention are better left to such a later occasion.

4.9 I note in this regard that the Victorian Law Reform Commission expects to publish its final Report by the end of 2003 in which it will make recommendations “whether it would be appropriate to reform, narrow or extend the defences or partial excuses to homicide, including self defence, provocation and diminished responsibility.”

4.10 I suggest that any further consideration of the partial defences to murder “excessive force” in self-defence, provocation, and “substantial impairment by abnormality of mind”, be deferred until the report of the Victorian Law Reform Commission is published later in the year.

4.11 In reviewing the law of manslaughter, I have had regard to relevant provisions of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General’s (“MCCOC”)1998 Discussion Paper titled “Chapter 5 - Fatal Offences Against the Person”, along with developments and proposals in other jurisdictions. The Model Criminal Code is a co-operative project between the Commonwealth, State and Territory governments, aimed at achieving consistent (but not necessarily uniform) criminal laws.

The common law jurisdictions are the Commonwealth, the Australian Capital Territory, New South Wales, South Australia and Victoria. The code jurisdictions are the Northern Territory, Queensland, Tasmania and Western Australia.

4.12 As to B. “Manslaughter and Unborn Children”.

4.13 The terms of this reference raise some very important, complex and fundamental questions. One of these questions is whether the criminal law, for the crimes of murder and manslaughter, requires the victim to have had an independent existence completely delivered from the body of its mother before death or whether a viable foetus, can be such a victim although it never enjoys such independent existence. This question is considered in Part 13.

4.14 Other important questions raised are:

· Whether “New South Wales should legislate to introduce the offence of ‘Child Destruction’?” This question is considered in Part 14A.

· Whether “it would be necessary to establish that the offender knew that the mother was bearing a child” This question is considered in Part 14B.

· Whether the strict liability provisions of the Crimes Act 1900 (NSW) in respect of dangerous driving of a vehicle (section 52A) and dangerous navigation of a vessel (section 52B) occasioning the death of a person should be extended to include the death of a child capable of being born alive before it has an existence independent of its mother? This question is addressed in Paragraph 14.3.

· Whether the pregnant woman should be excluded from such offence? This question is considered in paragraph 14.5 and 14.11.

5. BACKGROUND TO THE REVIEW

5.1 Pursuant to the Government’s determination upon reform to the sentencing laws in the criminal justice system of New South Wales, on 4 September 2002 a consultation draft was released of proposed amending legislation by Bill entitled Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2002.